1. Department for Education (1993). It was preceded by a Charter for Higher Education - Consultation Text (London: Department for Education, May 1993). There was a separate Charter for Further Education (1993).

2. Moran v University College Salford (No 2) [1994] ELR 187, CA. See below.

3. M Smith and N Sternberg ‘Laughed into court’TES, 4 February 1993.

4. F Gibb ‘Universities count the cost as students resort to legal action’The Times, 7 October 1996.

5. P Kingston ‘Dons in the dock’Guardian Education, 13 February 1996.

6. An account of the visitor's role is given in DJ Farrington The Law of Higher Education (London: Butterworths, 2nd edn, 1998) pp 216–235.

7. G Owen ‘Job pressure leads graduates to sue over degree marks’The Times, 31 December 2002. MR Davies ‘Universities, academics and professional negligence’ (1996) 12(4) Professional Negligence 102 at 110 reported a predicted ‘growth of about 300 per cent in the number of complaints about universities, covering issues ranging from academic standards to the quality of accommodation’. In a recent case, the visitor (The Queen, represented by the Lord Chancellor) ordered the University of Surrey to pay compensation to a failed PhD student whose supervisor failed to warn her that her work was below standard: P Baty ‘Surrey ordered to compensate PhD student’THES, 5 December 2003.

8. A selection are: B Russell ‘Colleges worried as students go to court’THES, 24 January 1997; S Hamilton ‘Students sue over course failures’The Sunday Times, 9 February 1997; A Utley ‘Anglia may face legal action’THES, 21 March 1997; J Hinde ‘Students sue for damages’THES, 30 May 1997; A Utley ‘Legal bid mooted over axed art course’THES, 29 November 2002; P Baty ‘Architecture students threaten lawsuit’THES, 25 July 2003; T Tysome ‘BSc class set to sue Leicester after cuts’THES, 10 October 2003.

9. Thomas v University of Bradford [1987] 1 AC 795, HL, confirming earlier authorities such as Thomson v University of London (1864) 33 LJCh. 625; Thorne v University of London [1966] 2 QB 237; and Patel v Bradford University Senate [1978] 1 WLR 1488.

10. Those that do not are mostly former polytechnics, whose status derives from the Further and Higher Education Act 1992. However, neither Oxford nor Cambridge University has a visitor.

11. Eg, Clark v University of Lincolnshire and Humberside [2000] ELR 345 at 349F–3496, per Sedley LJ (see below). In R v University of Portsmouth, exp Lakaraber [1999] ELR 135 the court refused to interfere with a decision by the university that a student would have to resit two units of her course. Simon Brown LJ said (at 140): ‘Only the clearest and most obvious unfairness or departure from the university’ s own regulations would justify an attempt by judicial review to impugn an academic decision of this character.’

12. H Thompson ‘If I don't get a degree, I'll sue’The Times Good University Guide, The Times, 20 May 1997.

13. Department for Education and Skills The future of higher education (Cm 5735, 2003) paras 4.11–4.12.

14. Part 2 of the Bill (as first published). A complaint would not be a ‘qualifying complaint’ covered by the new arrangements if it concerned ‘matters of academic judgment’: cl 12(2). The Bill does not refer to an ‘independent adjudicator’ per se, but to a complaints scheme run by a ‘designated operator’ providing for a qualifying complaint to be ‘reviewed by an individual who— (a) is independent of the parties, and (b) is suitable to review that complaint’: Sch 1, para 4.

15. See, eg, T Birtwistle ‘Should multiple systems for academic appeals remain?’ (2000) 1(3) Ed Law J 135. The jurisdiction of the visitor over decisions concerning admission to an institution or in respect of any complaint made by a student or former student at the institution in question would be excluded by the Higher Education Bill: cl 19 (as first published).

16. Outlined in n 13 above, paras 7.30 and 7.31. Of course, home postgraduate students already pay fees in that range. In P Baty ‘Student seeks full fee refund from Glasgow’THES, 11 July 2003, it is reported that a claim for a £3,000 fees refund was made by a student who was dissatisfied with the level of service on his MSc course and was said to be considering legal action.

17. D Triesman ‘Human rights and higher education’, speech given at the Rights and Responsibilities Conference on the implications of the Human Rights Act for Education, London, 18 January 2001.

18. Grutter v Bollinger et a1 123 S Ct 2425 (2003); Gratz et a1 v Bollinger et a1 123 S Ct 2411 (2003).

19. See below. For the purposes of the Act, universities are considered to be public authorities in relation to many of their functions: A Bradley ‘Scope for Review: The Convention Right to Education and the Human Rights Act 1998’ [1999] EHRLR 395 at 409; K Kerrigan and P Plowden ‘Human Rights and Higher Education’ [2002] Ed Law J 16 at 16–20. Feldman observes that although universities receive substantial public funding and are government-regulated they nonetheless trade their services (including accommodation and catering) and derive considerable income from commercial sources. Universities ‘should be limited-purpose public authorities’ although it may not always be easy to distinguish their public functions from their private acts: D Feldman Civil Liberties and Human Rights in England and Wales (Oxford: Oxford University Press, 2nd edn, 2002) p 97.

20. [1969] 2 QB 538; [1969] 2 WLR 1418.

21. JW Bridge ‘Keeping Peace in Universities: The Role of the Visitor’ [1970] 86 LQR 531 at 531.

22. HWR Wade ‘Judicial control of universities’ (1969) 85 LQR 468; JF Garner ‘Students: contract or status?’ (1974) 90 LQR 6; HWR Wade (untitled) (1974) 90 LQR 157.

23. See in particular Clark v University of Lincolnshire and Humberside [2000] ELR 345.

24. See further HWR Wade and CF Forsyth Administrative Law (Oxford: Oxford University Press, 8th edn, 2000) pp 538–539. As regards the exclusivity of the proposed adjudicator's jurisdiction, account must be taken of the statutory framework. In analogous areas, such as where appeal lies to an independent appeal panel against a school exclusion, the courts have exceptionally intervened via judicial review; but the general position is that statutory appeal or complaints rights must be exhausted first: see N Harris and K Eden, with A Blair Challenges to School Exclusion (London: Routledge Falmer, 2000) pp 32–33.

25. OECD Responding to Student Expectations (Paris: OECD, 2002).

26. Resulting from amendment of parts of the Disability Discrimination Act 1995 by the Special Educational Needs and Disability Act 2001: see below.

27. C Middleton ‘Models of State and Market in the “Modernisation” of Higher Education’ (2000) 21 Higher Education 4 at 549.

28. See DJ Farrington ‘Higher Education in Great Britain’ in C Russo (ed) Yearbook of Education Law (Dayton: Education Law Association, 2000) p 541. See also D Palfreyman and D Warner (eds) Higher Education Law (Bristol: Jordans, 2nd edn, 2002) ch 1.

29. See J Potter ‘Consumerism and the Public Sector: How Well Does the Coat Fit?’ (1988) 66 PA 149. See also J Epstein Public Services: Working for the Consumer (Paris: OECD, 1990).

30. Up to two members of the student body, nominated by the students, among the 12–24 members of the corporation: Education Reform Act 1988, Sch 7A, paras 2 and 3.

31. Conferred by university statuteslordinances and internal regulations or codes rather than primary or secondary legislation.

32. Quoted in House of Commons Education and Skills Select Committee, Fifth Report, 2002–03, Reform of higher education (London: TSO, 2003) para 155.

33. P Taylor-Gooby ‘The new educational settlement’ in P Taylor-Gooby and R Lawson (eds) Markets and Manager: New Issues in the Delivery of Welfare (Buckingham: Open University Press, 1993) p 114.

34. See, eg, BG Charlton ‘Audit, Accountability and All That. The Growth of Managerial Technologies in UK Universities’ in S Prickett and P Erskine-Hill Education! Education! Education! Managerial Ethics and the Law of Unintended Consequences (Thorverton: Imprint Academic, 2002) pp 13–28.

35. Most recently in the case of disability, noted earlier.

36. See Department for Education and Skills Widening Participation in Higher Education (London: DfES, 2003).

37. White Paper, n 13 above, para 7.32. Access agreements were recently criticised by the House of Commons Select Committee on Education and Skills as appearing to be ‘driven by political considerations rather than having a practical purpose’: Fifth Report, 2002–03, Reform of higher education (London: TSO, 2003) para 140. As regards the need for government to play an active role in widening access, see L Archer et al Higher Education and Social Class (London: Routledge Falmer, 2003) ch 10.

38. But not an absolute right within the terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950: see below.

39. ‘Education must be a force for opportunity and social justice, not for the entrenchment of privilege’: Department for Education and Skills, n 13 above, p 67.

40. Eg, R Lister ‘Citizenship, Exclusion and “the Third Way”: Reflections on T.H. Marshall’ (2000) 7(2) JSSL 70 at 75. See generally, M Bulmer and AM Rees (eds) Citizenship Today: The Contemporary Relevance of T.H. Marshall (London: University College London Press, 1996).

41. R Lister The Female Citizen (Liverpool: Liverpool University Press, 1989); K O'Donovan ‘Gender Blindness or Justice Engendered’ in R Blackbum (ed) Rights of Citizenship (London: Mantell, 1993) pp 12–30 A Philips Democracy and Difference (London: Polity, 1993).

42. C Stychin ‘Consumption, Capitalism and the Citizen: Sexual and Equality Rights Discourse in the European Union’ in J Shaw (ed) Social Law and Policy in an Evolving European Union (Oxford: Hart, 2000) p 260.

43. KD Ewing ‘Social Rights and Constitutional Law’ [1999] PL 104 at 106. Ewing distinguishes substantive or material rights from ‘procedural or non-material’ rights, concerned ‘mainly to regulate the exercise of social power’ (his main context being the workplace).

44. Amendments to the Disability Discrimination Act 1995 made by the Special Educational Needs and Disability Act 2001, Pt 2, Ch 2.

45. Education Act 1996, ss 450–458. There are minor exceptions, eg, for some music tuition and school trips outside school hours.

46. C Howarth, P Kenway and G Palmer Responsibility for All. A National Strategy for Social Inclusion (London: NPI/Fabian Society, 2001) p 3.

47. See generally the discussion in P Taylor-Gooby and R Lawson ‘Where do we go from here? The new order in welfare’ in P Taylor-Gooby and R Lawson (eds) Markets and Managers: New Issues in the Deliveiy of Welfare (Milton Keynes: Open University Press, 1993) pp 132–149; A Vincent and R Plant Philosophy, Politics and Citizenship (Oxford: Basil Blackwell, 1984); P Golding (ed) Excluding the Poor (London: Child Poverty Action Group, 1986); R Lister The Exclusive Society. Citizenship ad the Poor (London: Child Poverty Action Group, 1990); C Oppenheim (ed) An Inclusive Society: Strategies for Tackling Poverty (London: PPR, 1998); N Harris ‘Exclusion-Inclusion: Tensions in Education Law and Policy’ (2000–01) 5(2) Contemporary Issues in Law 127.

48. See H Dean Welfare Rights and Social Policy (Frenchs Forest: Prentice Hall, 2002).

49. See N Harris et al Social Security Law in Context (Oxford: Oxford University Press, 2000), especially chs 1 (Harris) and 10 (Lundy).

50. Secretary of State for Social Security/Minister of Welfare Reform New ambitions for our country. A New Contract for Welfare (Cm 3805, 1998) foreword (by Tony Blair).

51. Above n 50, ch 11, para 5.

52. Plant, R Supply Side Citizenship’ (1999) 6(3)Google Scholar JSSL 124 at 125.

53. F Field ‘Making Welfare Work: The Underlying Principles’ in F Field et al Stakeholder Welfare (London: IEA, 1996) pp 8–45.

54. Eg, P Alcock ‘Welfare and Self-Interest’ in Field, n 53 above, pp 52–53.

55. A Furlong (ed), B Stadler and A Azzopardi Vulnerable youth: perspectives on vulnerability in education, employment and leisure in Europe (Strasbourg: Council of Europe, 2000) p 17.

56. See P Golding (ed) Excluding the Poor (London: Child Poverty Action Group, 1986); R Lister The Exclusive Society (London: Child Poverty Action Group, 1990); J Le Grand ‘The State of Welfare’ in J Hills (ed) The State of Welfare: The Welfare State in Britain since 1984 (Oxford: Clarendon Press, 1991) pp 358–360. See also Commission on Social Justice Social Justice: Strategies for National Renewal (London: Vintage, 1994).

57. Lister, n 40 above, at 87. See also, R Lister ‘Vocabularies of citizenship and gender: the UK’ (1998) 18(3) Critical Social Policy 309.

58. Ewing, n 43 above, pp 121 and 122.

59. Stychin, n 42 above, p 262.

60. D Leslie, A Abbott and D Blackeby ‘Why are Ethnic Minority Applicants Less Likely to be Accessing Education?’ (2002) 56(1) Higher Education Q 65. See also T Modood and M Shiner Ethnic Minorities and Higher Education (London: Policy Studies Institute, 1994).

61. In X v UK (1980) 23 DR 228 the European Commission on Human Rights held (at 229) that ‘where certain limited education facilities are provided by the State, in principle it is not incompatible with Article 2 of Protocol 1 (of the European Convention on Human Rights), to restrict access thereto to those students who have attained the academic level required to most benefit from the courses offered’.

62. See the definitions currently in s 1(2) (read with sub-s(3)) of the Mental Health Act 1983, which refers to: ‘mental disorder’, ‘severe mental impairment’, ‘mental impairment’ and ‘psychopathic disorder’. See further B Hale Mental Health Law (London: Sweet and Maxwell, 4th edn, 1996). For useful classifications of mental illness and disorder, and their effects on the individual, see Royal College of Psychiatrists The mental health of students in higher education Council Report CR112 (London: RCP, 2003) pp 27–32; and M Anylward et al The Disability Handbook (London: The Stationery Office, 2nd edn, 1998) ch 19.

63. AMOSSHE Responding to student mental health issues: ‘Duty of Care’ responsibilities for student services in higher education Good Practice Guide (Winchester: AMOSSHE, December 2001) p 8. For a helpful account of the range of mental health problems experienced by young people, and the impact of substance abuse, see P Aggleton, J Hurry and I Warwick (eds) Young People and Mental Health (Chichester: John Wiley, 1999).

64. I Grewal et al ‘Disabled for life?’ attitudes towards, and experiences of disability in Britain DWP Research Report 173 (Leeds: Corporate Document Services, 2002) p 39.

65. Above n 44.

66. That is, it has lasted for 12 months, or it is likely to last for at least 12 months or for the rest of the person's life: DDA 1995, Sch 1, para 2(1).

67. Disability Rights Commission (DRC) Disability Discrimination Act 1995 Part 4: Code of Practice for providers of Post 16 education and related services (London: DRC, 2002) Appendix, para Al.8.

68. DDA 1995, s 1 (1) and Sch 1(1); 13 Halsbury's Laws of England (2000) para 468.

69. DDA 1995, Sch 1, para 4.

70. In The Queen on the application of N v The Secretary of State for the Home Department (2003) WL 117120, QBD (Admin Ct) (judgment 14 February 2003), eg, it was noted that the claimant's severe depression affected his concentration such that he was unable to continue with a computer course and an English course at college. He had also ‘lost pleasure in all day-to-day activities’ (at [92]).

71. See, eg, Prison Service v Beart [2003] ICR 1068.

72. Disability Discrimination (Meaning of Disability) Regulations 1996, SI 1996/1455, reg 4(1).

73. Learning and Skills Act 2000, s 13(5). This relates to further education but not higher education. Dyslexia gives rise to special educational needs but ‘is often referred to as a “difference” rather than a deficit, impairment or disability’: J Swain et al Controversial Issues in a Disabling Society (Buckingham: Open University Press, 2003) p 26.

74. Pt IV, which does not apply to further or higher education: Wakefield DC v E and anor [2002] ELR 203, QBD; R v Portsmouth City Council, exp Faludy [1999] ELR 115, CA.

75. Available at http://www.hesa.ac.uk/holisdocs/pubinfo/student/disab0102.htm. The total with mental health problems excludes any students who might be included in the category with ‘multiple’ disabilities.

76. In that year, 15,699 (2.65%) of the 592,839 students were disabled, of whom just 303 (1.93% of disabled students) were classed as having mental health problems: http://www.hesa.ac.uk/holisdocs/pubinfo/student/disab9495.htm.

77. This is also a problem in schools: Ofsted The education of pupils with medical needs (London: Ofsted, 2003) para 79.

78. Swain et al, n 73 above, p 15.

79. CVCP Guidelines on student mental health policies and procedures for higher education (London: CVCP, 2000).

80. CVCP, above n 79, para 2.4.

81. G Bradley ‘Responding effectively to the mental health needs of international students’ (2000) 39 Higher Education 417.

82. AUCC Annual Survey of Counselling in Further and Higher Education (London: AUCC, 2002). See also, T Tysome Students ‘suicidal’ as debts mount upTHES, 29 November 2002.

83. AUCC, n 82 above.

84. Royal College of Psychiatrists, n 62 above, p 23.

85. Royal College of Psychiatrists, n 62 above, p 16 (citing a study by Sell and Robson published in 1998).

86. Royal College of Psychiatrists, n 62 above, pp 13–14.

87. Royal College of Psychiatrists, n 62 above, p 13.

88. ‘The modularisation of some degrees, while providing students with increased flexibility and choice, has sometimes resulted in the loss of a stable peer group and the opportunity to maintain consistent contact with academic staff’: Royal College of Psychiatrists, n 62 above, p 25.

89. R Rana, E Smith and J Walkling Degrees of Disturbance - the New Agenda (London: Heads of University Counselling Services, 1999); N Stanley and J Manthorpe (eds) Students' Mental Health Needs. Problems and Reponses (London: Jessica Kingsley, 2002).

90. Universities UK Aspects of the student experience which affect retention Written Evidence to the Education Sub-Committee of the House of Commons Education and Employment Select Committee, 19 January 2001, para 19.

91. Above n 82.

92. Above n 62, p 25.

93. (London: Department of Health, 2002).

94. Sexuality is another factor. There are higher rates of contemplated suicide and a history of attempted suicide among gay men and lesbians than among heterosexuals and bisexuals: Royal College of Psychiatrists, Press Release, 3 July 2003.

95. Above n 93, para 1.3.

96. Royal College of Psychiatrists, Press Release, 27 September 2002. Children who consider themselves a failure are at increased risk: see H Ayyash-Abdo ‘Adolescent Suicide: An Ecological Approach’ (2002) 39(4) Psychology in the Schools 459 at 465.

97. M Hobbs, consultant psychiatrist, quoted in K Coxon ‘Fight for Survival’Guardian, 10 September 2002.

98. British Association for Counselling and Psychotherapy, Press Notice, June 2003, http://www.bacp.co.uk/media/pr/038.htm.

99. (London: Universities UK, 2002).

100. Universities UK, n 99 above, ch 2.

101. See also the research cited in the report by the Royal College of Psychiatrists, n 62 above, pp 20, 22.

102. Above n 99, para 2.12.

103. Above n 99, para 2.13.

104. Above n 99, para 2.14.

105. ‘The stresses of university and college life … might exacerbate pre-existing emotional and psychiatric problems in some students and precipitate disorders in others’: Royal College of Psychiatrists, n 62 above, p 11.

106. Royal College of Psychiatrists, n 62 above; CVCP, n 79 above, para 5.1; J Wade ‘Students’ Perspectives' in Stanley and Manthorpe, n 89 above, p 63.

107. ‘Screen medics’ mental health’THES, 4 July 2003, pp 1–3.

108. D Molloy, T Knight and K Woodfield Diversity in Disability Department for Work and Pensions Research Report No 188 (Leeds: Corporate Document Services, 2003) p 84.

109. See Quality Assurance Agency for Higher Education Code of practice for the assurance of academic quality and standards in higher education, Section 3: Students with disabilities (Gloucester: QAA, 1999) p 11; AMOSSHE, n 63 above, pp 12 and 36.

110. CVCP, n 79 above, para 4.4. See also M Gould ‘Invisible support’Guardian Education, 22 July 2003, p 14.

111. DDA 1995, ss 283(3), 28T.

112. Disability Rights Commission (DRC) Disability Discrimination Act 1995 Part 4: Code of Practice for providers of Post 16 education and related services (2002) para 4.18.

113. See further part 5(d) below.

114. [2002] 2 FCR 577 at [90].

115. U Kilkelly The Child and the European Convention on Human Rights (Aldershot: Ashgate, 1999) p 149.

116. Kilkelly, n 115 above, pp 150–151, citing Application No 27229/95 Keenan v UK [1998] 26 EHRR CD 64, 22 May.

117. Home Office Circular 32/2000.

118. See Article 8(2).

119. Above n 62.

120. See, in particular, Farrington, n 6 above; and Palfreyman and Warner (eds), n 28 above.

121. [1994] ELR 187.

122. [1994] ELR 187 at 197.

123. But note that while Farrington (n 6 above) refers to separate contracts of matriculation and membership, Palfreyman et al (n 28 above) think it is better to conceive of the contractual relationship as continuous under rolling contracts. If a conditional offer is made then the binding duty to admit the student arises only when the conditions are fully met.

124. This was because the course was over-subscribed and many better-qualified persons than Mr Moran had been rejected.

125. As to the latter, see D’ Mello v Loughborough College of Technology [1970] Times, 17 June, QBD.

126. SI 1999/2083. See S Whittaker ‘Judicial Review in Public Law and in Contract Law: The Example of “Student Rules”’ (2001) 21(2) OJLS 193 at 208–210.

127. Clark v University of Lincolnshire and Humberside [2000] ELR 345, CA.

128. [2000] ELR 345 at 349, CA.

129. N Hart et al ‘The Higher Education Institution-Student Contract’ in Palfreyman and Warner (eds), n 28 above, para 6.18.

130. Buckingham et al v Rycotewood College, Warwick Crown Court, 28 February 2003. The judge also awarded sums representing the loss of value of certain vehicles plus additional costs.

131. G Hackett ‘Private school pays out for poor teaching’The Sunday Times, 10 November 2002. See, as to the contractual basis, Mount v Oldham Corpn [1973] 1 QB 309, CA; and Price v Dennis 29 January 1988 (Lexis), CA.

132. Supply of Goods and Services Act 1982, s 13.

133. CVCP, n 79 above, para 3.3.

134. CVCP, n 79 above, paras 2.7–2.8. Universities UK, n 99 above, paras 4.18–4.19.

135. CVCP, n 79 above, para. 4.18. A similar argument is presented by A Grant ‘Identifying Students’ Concerns' in Stanley and Manthorpe, n 89 above, pp 83–105 at 101.

136. Above n 130, transcript, p 7.

137. Universities UK, n 99 above, para 4.19.

138. Ross v Stanbridge Earls Schools [2003] ELR 400.

139. Per Tucker J in R v Incorporated Froebal Institute exp L [1998] ELR 488 at 493E, citing Meggary, J In CH Giles & Co Ltd v Morris and ors [1972] 1 Google Scholar WLR 307 at 318.

140. [2003] ELR 400 at [14].

141. In Moran v University College Salford (No 2) [1994] ELR 187 Evans LJ said (at 206D) that ‘There would be no element of personal circumstances such as might, in certain circumstances, preclude the grant of a mandatory injunction’; but an injunction was in any event refused on other grounds, as noted above.

142. (24 July 2000, unreported, case number B1/2000/5915).

143. [1995] AC 633 and [1995] ELR 404, HL.

144. [1999] 3 WLR 79 and [1999] 2 FLR 426, HL.

145. [2000] 3 WLR 776 and [2000] ELR 499, HL. The court left open the question of direct (as opposed to vicarious) liability of the local education authority (see further n 146 below).

146 See further P Craig and D Fairgrieve ‘Barrett, Negligence and Discretionary Powers’ [1999] PL 626; R McManus ‘The House of Lords’ ruling in Phelps v London Borough of Hillingdon and its implications' (2000) 1(4) Ed Law, J Mullis, A Phelps v Hillingdon London Borough Council. A rod for the hunch-backed teacher (2001) 13(3)Google Scholar CFLQ 331; Murphy, J Children in need: the limits of local authority accountability (2003) 23(1)Google Scholar LS 103 at 106–115. Comparative perspectives are provided by Fairgneve, D and Andenas, M Tort Liability for Educational Malpractice: the Phelps case (1999) 10 Google Scholar KCLJ 210; B Markesinis et al Tortious Liability of Statutory Bodies (Oxford: Hart, 1999); and D Fairgrieve State Liability in Tort - A Comparative Law Study (Oxford: Oxford University Press, 2003).

147. Bolam v Frien Hospital Management Committee [1957] 1 WLR 582, establishing the need to act in conformity with practices that would be accepted by a responsible body of opinion within the particular profession, a test requiring a teacher to have acted ‘in a way in which reasonably competent teachers … would have acted’: Liennard v Slough Borough Council [2002] ELR 527 at [166], per Henriques J.

148. Two of the education cases that were before the House of Lords on the striking out issue in X (minors) have since foundered largely for this reason: Christmas v Hampshire County Council [1998] ELR 1, QBD; Keating v The Mayor and Burgessses of the London Borough of Bromley [2003] EWHC 1070, QB, 15 May 2003 (in which Stanley Burnton J refused to re-open for full consideration the issue of whether a direct duty of care was owed by the LEA (see n 45 above) but felt bound, in the light of the House of Lords decisions, to hold that it was not).

149. Eg, Robinson v St Helens Metropolitan Borough Council [2002] ELR 681, CA.

150. Bradford-Smart v West Sussex County Council [2002] ELR 139, CA; and see also Faulkner v London Borough ofEnfield and Lea Valley High School [2003] ELR 428.

151. [2002] ELR 139, CA.

152. [2002] ELR 139 at [35], CA.

153. There is not the space to analyse these differences in detail, but note, eg, that the in loco parentis principle (that the teacher acts ‘in place of the parents’) is relevant in schools (see N Harris Law Relating to Schools (Croydon: Tolley, 2nd edn, 1995) ch 13), but [t]here is no judicial precedent in Australia or the UK that supports the notion of a university occupying the position of in loco parentis to its students: AL Monotti and S Ricketson Universities and Intellectual Property (Oxford: Oxford University Press, 2003) p 118.

154. As is argued by Davies, above n 7, at 112. A further possible analogy here is with social workers' professional responsibilities as per Barrett v Enfield London Borough Council [1999] 3 WLR 79, HL.

155. There is also the possibility that systemic failures at a senior administrative level, such as in the context of the provision of staff training or the employment of staff, could also result in such liability, subject to the usual caveats.

156. See n 147 above.

157. Gower v London Borough of Bromley [1999] ELR 356 at 359, CA.

158. [1995] ELR 404 at 451B–451D.

159. Above nn 63 and 79.

160. The CVCP (2000) guidance (n 79 above) says that those coming into contact with students need to be clear about when such a referral should take place: paras 3.7 and 3.18.

161. D Stewart and A Knott ‘Schools and the Duty of Care in Relation to Student Suicide and Self-Harm: An Australian Perspective’ [2002] Ed Law J 218.

162. See D Fairgreve ‘Pushing back the Boundaries of Public Authority Liability: Tort Law Enters the Classroom’ [2000] PL 288 at 307–308; DJ Stewart and AE Knott Schools, Courts and the Law (Frenchs Forest: Prentice Hall, 2002) ch 12.

163. Eg, the author's own School's web pages: ‘first point of contact for you to talk about… personal problems … To refer you to parts of the University support system (for example … counselling services).’

164. Davies, n 7 above, at 112.

165. See, eg, Phillips v William Whiteley Ltd [1938] 1 All ER 566; and Wells v Cooper [1958] 2 QB 265 for analogies.

166. See Peter W v San Francisco Unified School District (1976) 60 Cal App 3d 867 and Donoghue v Copiague Union (1978) 407 NYS 2d 874, considered by Stuart-Smith LJ in Phelps v London Borough of Hillingdon [1998] ELR 587 at 603A–630G, CA.

167. Fairgrieve and Andenas, n 146 above.

168. (1991) 324 Md 376, 17 ALR 5th 957.

169. 2002 WL 31687188 (WD Va, 2002).

170. Barrett v Enfield London Borough Council [1999] 3 WLR 79 and [1999] 2 FLR 426, HL.

171. Above n 82.

172. D Fairgrieve State Liability in Tort (Oxford: Oxford University Press, 2003) pp 127–128. In Walker v Northumberland County Council [1995] ELR 231, where Colman J, in assessing the standard of care owed by a council towards its employee, said that ‘in deciding what was reasonable conduct I must have regard to the acute staffing problems [ie shortage] which at the relevant time confronted the council’ (at 254G–2548). See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 468 and 469, per Mason J, approved by Lord Hutton in Barrett v Enfield London Borough Council [1999] 2 FLR 426 at 457B-E, HL. See also Knight v Home Office [1990] 3 All ER 237 at 243: ‘In making the decision as to the standard to be demanded the court must, however, bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for Parliament’ (per Pill J).

173. [1995] ELR 231.

174. [2002] 2 All ER 1 at [43], CA. See N Hart and S Jamdar ‘Education and the rise and fall of stress at work’ (2002) 3(2) Ed Law J 89.

175. Foumeny v University of Leeds [2003] EWCA Civ 557, 16 April 2003. Potter LJ refused the claimant permission to appeal.

176. Barber v Somerset County Council [2004] UKHL 13, 1 April 2004, Lord Scott dissenting. Lord Walker of Gestingthorpe, giving the lead majority judgment, stated that the first three parts of Hale LJ's judgment (introduction; background; and the law) constituted a ‘valuable contribution to the development of the law’ (at [63]), but (at [65]) he said preferred the more general test set by Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783, as the ‘best statement of general principle’, in relation to some aspects of it. In what was probably an omission, Lord Walker did not explicitly endorse part 4 of Hale LJ's judgment, which contains, in one lengthy paragraph ([43], under the heading ‘summary’), the practical propositions outlined below.

177. [2002] 2 All ER 1, CA.

178. Above n 79, paras 4.3–4.8.

179. For discussion of this issue in the context of psychiatric assessment of risk from a dangerous person, see Mason, Jk The legal aspects and implications of risk assessment’ (2000) 8(69)Google Scholar Med LR 69. For the risk of liability arising from students with criminal records, see MR Davies ‘Admission to higher education: the legal issues arising from applicants with criminal convictions’ (2000) 12(3) Education & the Law 143 at 145–147.

180. Reported in D Lee ‘Give me an A or you're dead’; see also P Baty ‘Violent students terrorise staff’, both in THES, 28 February 2003.

181. See J Cooke ‘Primary Victims; the End of the Road?’ (2004) 25(1) Liv LR 29, which reviews the cases. The duty of care issue is possibly analogous with that in Wand ors v Essex County Council [2001] 2 AC 592, HL, where foster parents sued for the effects of a psychiatric illness that they developed when their children were sexually abused by a boy who had been placed in their care by the local authority following false representations (in response to their prior concerns) that he was not a known sexual abuser. The House of Lords refused to strike out the parents' claim that they were owed a duty of care and that it was breached. In relation to university staff and students, health and safety issues also arise under the Health and Safety at Work etc Act 1974, discussion of which cannot be accommodated here.

182. HOC 32/2000, Detainee Risk Assessment & Revised Prisoner Escort Record (PER) Form.

183. [2002] ELR 139, CA.

184. [1970] AC 1004.

185. Bradford-Smart v West Sussex County Council [2002] ELR 139 at [34], CA, per Judge LJ.

186. [2000] PIQR P1.

187. See also Hill v Chief Constable of West Yorkshire [1989] AC 53; and K v Secretary of state for the Home Ofice [2002] EWCA Civ 983, CA, per Laws LJ.

188. [2001] EWCA Civ 1717, 1 November 2001; see also Moore v Kirklees Metropolitan District Council (30 April 1999, unreported), CA; and Marvier v Dorset County Council (1997) Westlaw.

189. [2004] 1 FLR 749, [2003] EWCA Civ 1848, 17 December 2003.

190. [2003] 1 FLR 615 at [27], QBD. The Court of Appeal (per Hale LJ at [71]) nonetheless held that it was foreseeable that the child might assault them and their property and that, accordingly, ‘the principle in Page v Smith [1996] AC 155 indicates that there is liability for whatever harm ensues’.

191. DDA 1995, Pt 4, Ch 2 (Further and Higher Education), as amended by the Special Educational Needs and Disability Act (SENDA) 2001. Claims lie to the county court in England and Wales: DDA 1995, s 28V.

192. DDA 1995, ss 28R, 28s.

193. DDA 1995, s 28T.

194. DDA 1995, s 28S(5).

195. See Code of Practice, n 112 above, Parts 5 and 6.

196. Special Educational Needs and Disability Act 2001 (Commencement No 5) Order 2002, SI 2002/2217 (C 71).

197. Those charged with the duty to take reasonable steps must have regard to the Code of Practice (see n 112 above): DDA 1995, s 28T(2).

198. DDA 1995, s 28S(4).

199. See Department for Education and Skills Finding Our About People's Disabilities (London: DfES, 2002) p 1; Code of Practice, n 112 above, paras 5.5 and 5.6.

200. Above n 112, para 4.18.

201. DDA 1995, s 28S(5), (6).

202. DDA 1995, s 28S(8). But see also s 28S(9).

203. DDA 1995, s 28T(3)–(5).

204. Above, n 109 at p 13. See also DRC, Code of Practice, n 112 above, example 5.8D (student with depression whose medication makes it difficult to undertake prescribed work experience in the mornings).

205. See, eg, M School v CC, PC and anor [2003] EWHC 3045 (Admin), 11 December, 2003, where it was held that selection of proper comparators where discrimination against a pupil is alleged should be done in the same way as when selecting comparators in discrimination in employment cases (per Silber J at [45]).

206. DDA 1995, s 6.

207. Moreover, only a few exemplars, in the form of brief case studies, are set out in the Code of Practice (n 112 above).

208. Swain et al, n 73 above, pp 23–25; R Rieser ‘Disability Discrimination: the Final Frontier’ in M Cole (ed) Education, Equality and Human Rights (London: Routledge Falmer, 2000) pp 118–140, at pp 119–121.

209. Swain et al, n 73 above, p 24.

210. See the specific criticisms levelled at the UK government's approach, in contrast to the civil rights approach in the US, by O Konur ‘Creating Enforceable Civil Rights for Disabled Students in Higher Education: an institutional theory perspective’ (2000) 15(7) Disability & Society 1041.

211. Note, in this context, that the Court of Appeal held that a school could be liable under the Sex Discrimination Act 1975 for the discriminatory acts of school pupils towards employees if it did not take reasonable steps to prevent them (Pearce v Governing Body of May feld School [2002] ELR 16: insulting and offensive behaviour by pupils towards a lesbian teacher on the grounds of her sexuality); see further S Whitboum ‘The liability of schools for the discriminatory acts of pupils’ [2002] EPL 12. But the House of Lords has taken a different view in this case: Macdonald v Advocate General for Scotland; Pearce v Governing Body of May feld School [2003] UKHL 34, [2003] ICR 937. Perhaps in very limited circumstances, however, students could be covered by s 57 of the 1995 Act (as amended by SENDA 2001, s 38), under which a person who knowingly aids another person to commit an act made unlawful by the Act commits such an act him or herself. Schools are explicitly excluded from s 57.

212. Malone v UK [1996] EHRLR 440.

213. The right includes a principle of respect for parents' religious or philosophical convictions in relation to the right to education, but the UK entered a reservation to the effect that the principle is accepted only so far as is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

214. See Yanasik v Turkey (1993) 74 DR 14; Sulak v Turkey (1996) 84 DR 101

215. See in particular Sulak v Turkey (1996) 84 DR 101. The authorities are usefully reviewed by Scott Baker LJ in Douglas v North Tyneside Metropolitan Borough Council and the Secretary of State for Education and Skills [2004] 1 All ER 709, CA, who could ‘see no reason in principle for concluding that the Art 2 [of Protocol 1] right should cease at any particular stage in the education process … I have … come to the conclusion that Art 2 of Protocol 1 does apply to tertiary education’ (at [43] and [44]; the other judges concurred). A forthcoming ruling on this point in Eren v Turkey Application No 60856/00, the complaint having been declared admissible by the European Court of Human Rights, should cast further light on this question.

216. X v UK (1980) 23 DR 228 at 229; X v UK (1982) 4 EHRR 252 at para 13.

217. Belgian Linguistics Case (No 2) (1968) 1 EHRR 252.

218. See K Starmer European Human Rights Law (London: LAG, 1999) pp 687–690. In Douglas v North Tyneside Metropolitan Borough Council and the Secretary of State for Education and Skills [2003] EWCA Civ 1847, CA, Scott Baker LJ accepted that the Secretary of State had justification for Article 14 and Protocol 1, Article 2 purposes in restricting access to student loans to persons aged 55 and under. The allocation of scarce resources was a crucial (but not the sole) factor: see [61]-[64].

219. (2001) 31 EHRR 1 at [47].

220. (2003) WL 117120, QBD (Admin Ct), judgment 14 February 2003.

221. (2003) WL 117120 at [111], QBD (Admin Ct), judgment 14 February 2003.

222. Anufrijeva and anor v Southwark London Borough Council; R (on the application of N) v Secretary of State for the Home Department; R (on the application of M) v Secretary of State for the Home Department [2003] EWCA Civ 1406, [2003] All ER (D) 288 (Oct) at [142].

223. [2003] EWCA Civ 1406, [2003] All ER (D) 288 (Oct) at [1431.

224. But note that the court said that the ‘egg-shell skull principle forms no part of the test of breach of duty under the HRA or the Convention’: [2003] EWCA Civ 1406, [2003] All ER(D) 288 (Oct) at [143].

225. See Starmer, n 218 above, para 16.3ff.

226. Feldman, n 19 above, p 195.

227. Osman v UK [1999] EHRLR 228, judgment of 28 October 1998.

228. Universities UK, n 99 above, paras 4.8–4.9.

229. By the application of Article 8 of the ECHR, including the exceptions to the privacy right in Article 8(2), noted above. See Feldman, n 19 above, pp 619, 621–622.

230. The pupil-teacher relationship is said to give rise to such a duty (Feldman, n 19 above, p 621), as does that involving doctor-patient and ‘priest and penitent’(A-G v Guardian Newspapers (No 2) [1988] 3 All ER 545 at 639F, per Lord Keith), and one assumes that by analogy so should that of tutor-student or counsellor-student. However, the nature of the information itself will be relevant: it must ‘have the necessary quality of confidence about it’, which would be the case with information about mental health problems as much as sexual matters (on which, see J Bridgeman ‘Don't tell the children’ in N Harris (ed) Children, Sex Education and the Law: Examining the Issues (London: National Children's Bureau, 1996) pp 45–69, at pp 59–60).

231. [1989] 2 WLR 471, CA.

232. General Medical Council Confidentiality: Protecting and Providing Information (London: GMC, 2000) para 36.

233. Above n 99, para 4.8.

234. S 2. However, note that the Act's definition of ‘data’ in s 1(1) refers exclusively to recorded data, data being processing by means of equipment, and data which forms part of an accessible record for certain purposes.

235. S 1(1).

236. S 1(1), also containing the definition of ‘data subject’ and ‘data controller’.

237. Above n 99, para 3.4.

238. Data Protection Act 1998, Sch 3, para 3, read with Sch 2, para 4 and Sch 1, para 1.

239. Data Protection Act 1998, Sch 3, para 8, read with Sch 2, para 4 and Sch 1, para 1.

240. Sch 3, para 10; Data Protection (Processing of Sensitive Personal Data) Order 2000, SI 2000/417, Sch, art 4.

241. Above n 240.

242. SI 2000/417, Sch, paras 1 and 2. This to some extent reflects the position under the law of confidentiality in W v Egdell [1989] 2 WLR 471, CA.

243. SI 2000/417, Sch, art 7.

244. M Henkel ‘Academic Values and the University as Corporate Enterprise’ (1997) 51(2) Higher Education Q 134 at 141.

245. D Riesman On Higher Education (New York: Jossey-Bass, 1980) p 371. Peter Vincent Jones similarly notes a potential dis-benefit from the growth of contractualism in parent-school relations: ‘Contractual Governance: Institutional and Organisational Analysis’ (2000) 20 OJLS 317.

246. J Ahier, J Beck and R Moore Graduate Citizens (London: Routledge Falmer, 2003).

247. Ahier, Beck and Moore, n 246 above, p 135.

248. Ahier, Beck and Moore, n 246 above, pp 140–141.

249. Ahier, Beck and Moore, n 246 above, p 159.

250. Ahier, Beck and Moore, n 246 above, pp 159–160.

251. S Wheeler Corporations and the Third Way (Oxford: Hart, 2002).

252. Above n 48, p 188.

253. P Spicker ‘The Rights of the Poor: Conceptual Issues’ in P Robson and A Kjonstad (eds) Poverty and the Law (Oxford: Hart, 2001) p 12.

254. D Oliver Common Values and the Public-Private Divide (London: Butterworths, 1999) p 273.